Th e Un i f o r m Ba r Ex a m i n a t i o n : A Be n e f i t t o La w Sc h o o l Gr a d u a t e s

by Veryl Victoria Miles

uring the past academic year, I have The audiences I have addressed have included had the opportunity to discuss with school students, deans, , and a variety of audiences some of the practitioners. As one can imagine, responses to the changes and innovations that have first three catalysts listed above have varied from Dtaken place within law schools and some that will school to school, which is understandable given the be coming to the law school community in the diversity one finds in the law school community in near future. The catalysts for these changes and terms of mission, academic program, student body, innovations are a variety of unrelated events, studies, and the employment market traditionally served. and initiatives, including However, with respect to the fourth catalyst— NCBE’s concept and promotion of the Uniform 1. the 2007 report of the Carnegie Foundation Examination—there has been general interest and for the Advancement of Teaching recom- support. mending that be delivered in a more integrative manner that links learn- In each presentation, I have identified myself as ing the law to law practice;1 having a dual interest in the promotion of the UBE. 2. the impact of the economic recession begin- The first reason for my interest is my service on the ning in 2008 on the legal employment mar- NCBE Special Committee on the Uniform Bar Exam ket and law school placement and career and my belief that a uniform examination used by services programs; all jurisdictions is a very pragmatic way to address the increasingly multijurisdictional nature of law 3. a proposed addition to the ABA Standards practice. and Rules of Procedure for Approval of Law Schools on student learning outcomes and The second reason for my interest in the adop- 2 assessments, which will require law schools tion of the UBE is that I am dean of a law school (The to identify more clearly the educational com- Catholic University of America Columbus School petencies that students should obtain during of Law) whose students represent close to 40 dif- their legal education and to measure student ferent states and bar licensing jurisdictions in any learning taking place during law school; given graduating class year. These graduates will and ultimately sit for the bar examination in as many 4. the National Conference of Bar Examiners’ as 25 to 30 different jurisdictions, making the UBE initiative to promote the Uniform Bar very appealing in meeting the broad bar admissions Examination (UBE). aspirations of our graduates, while also enhancing

6 The Bar Examiner, August 2010 their professional mobility in a fluid legal employ- the American , and the Association ment market. of American Law Schools.

My goal for each presentation has been to pro- In January 2008, NCBE held a conference to vide background information about the UBE, explain explore the feasibility and desirability of a uniform the characteristics of the UBE, explore the benefits of bar examination with state justices, the UBE, and inform the audience of concerns raised bar examiners, and bar admission administrators by interested parties.3 In this article I summarize the from jurisdictions that were using the three NCBE information I have provided in these presentations, tests recommended as the testing components of the include some of the reactions to the UBE, and share UBE. This conference resulted in significant inter- my thoughts about how the UBE can benefit recent est in the idea of a uniform bar examination. As law school graduates, based on experiences at my a result of the discussions that own institution and commonly followed that conference, a pro- shared experiences with law Th e i d e a o f a u n i f o r m b a r e x a m i - posal for the UBE was drafted by schools in general. n a t i o n , h o w e v e r , h a s b e e n d i s - the NCBE Special Committee on c uss e d b y v a r i o us g r o u p s within the Uniform Bar Exam. Th e Un i f o r m Ba r t h e l e g a l c o m m u n i t y o v e r t h e x a m i n a t i o n e m y st i f y i n g E : p a st 20 y e a r s . D A Ri p e n i n g Co n c e p t t h e Un i f o r m Ba r f o r Ba r Li c e n su r e Ex a m i n a t i o n One of the observations that I have come away with A ’s understanding of the bar examination from each presentation about the UBE is the audi- process is often reflective of what he or she took ence’s sense of the UBE as a novel concept for lawyer away from the experience of taking the exam. For . The idea of a uniform bar examination, most of us, mention of the bar exam reminds us of however, has been discussed by various groups an extremely stressful time and an intense focus on within the legal community over the past 20 years. learning “how to take the ” in order to get on That this has occurred without garnering much trac- with the business of being able to practice law. In tion beyond the discussant groups is revealing in spite of the memories many may have of the testing terms of the importance of timing as the key to intro- experience, the purpose of the examination itself ducing the UBE throughout the states and effecting must not be overlooked: to ensure that all new law- its broad adoption. yers possess basic competencies for effective practice of law. These competencies include basic knowl- Two events seem to have helped spark interest edge of core legal subjects and professional ethics; in the UBE. In 2002 discussions about the feasibility basic legal practice skills, including critical thinking, and merits of a uniform bar examination took place analysis, and problem solving; and effective written among several groups that would be most impacted communication skills. or advantaged by such an examination (the bench, the practicing bar, and the legal academy). These Accordingly, NCBE has developed several groups included the Conference of Chief Justices, different kinds of tests that bar examiners may use

The Uniform Bar Examination: A Benefit to Law School Graduates 7 to assess these competencies. The tests have been Th e C o m p o n e n t s o f t h e U n i f o r m B a r E x a m i n a t i o n introduced at different times, reflecting the chang- The three NCBE tests that make up the UBE are the ing needs and concerns of bar examiners and their following.* desire to be more effective and comprehensive in the The Multistate Bar Examination (MBE) ultimate certification of a lawyer’s competency • A six-hour, 200-question multiple-choice examination to practice. These tests include the Multistate Bar designed to assess the extent to which an examinee can apply fundamental legal principles and legal reason- Examination (MBE), the Multistate Essay Exam- ing to analyze given fact patterns.

ination (MEE), the Multistate Performance Test • Areas of law covered are , (MPT), and the Multistate Professional Respon- Contracts, and Procedure, Evidence, Real Property, and Torts. sibility Examination (MPRE). • The MBE is currently being used by 53 jurisdictions, The UBE is composed of the first three of these including 48 states (jurisdictions not using the MBE are Louisiana, Washington, and Puerto Rico). NCBE tests. (The MPRE, administered on a schedule different from the regular bar examination adminis- The Multistate Essay Examination (MEE) trations in February and July, is not part of the UBE.) • An examination consisting of nine 30-minute essay questions from which jurisdictions usually administer Consequently, the UBE tests a broad range of subject six of the nine. The UBE includes six MEE questions. matters, skills, and abilities, using multiple testing • Areas of law covered are Business Associations formats. The sidebar on this page provides a descrip- (Agency and Partnership; Corporations and Limited tion of each test used in the UBE. Liability Companies), Conflict of , Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Family Law, Federal , Real Be n e f i ts o f t h e Un i f o r m Ba r Property, Torts, Trusts and Estates (Decedents’ Estates; Trusts and Future Interests), and Uniform Commercial Ex a m i n a t i o n Code (Negotiable Instruments [Commercial Paper]; Secured Transactions). The MEE tests on legal issues The UBE offers uniformity and consistency in test that are of general application in all states. questions and grading rubrics among participating • The MEE is currently being used by 27 jurisdictions. jurisdictions and ensures the same level of exam quality and comparability of scores among jurisdic- The Multistate Performance Test (MPT) tions. NCBE maintains committees of test devel- • A 90-minute examination requiring the application of fundamental lawyering skills in a realistic situation. opment professionals with years of experience in Jurisdictions currently may use one or two MPTs for writing questions, and staff dedicated to assessing each exam. Each MPT evaluates an applicant’s ability to complete a task that a beginning lawyer should be the validity of the tests in determining law practice able to accomplish. The UBE includes two MPTs. proficiencies. The UBE provides greater transparency • Skills tested are factual analysis, legal analysis and in test development, administration, and scoring, reasoning, problem solving, identification and resolu- and jurisdictions do not have to incur the costs of test tion of ethical dilemmas, written communication, and organization and management of a legal task. development. • The MPT is currently being used by 34 jurisdictions. UBE scores are portable to other UBE jurisdic-

tions. This feature of the UBE has been received most * For more thorough descriptions of these tests, including sample favorably by all audiences and by student groups in questions and how the tests are developed, see Susan M. Case, The Testing Column: Coming Together: The UBE, Th e Ba r Ex a m i n e r , Aug. particular. Given the uncertainty many recent law 2009.

8 The Bar Examiner, August 2010 school graduates face in terms of where they will tion. These include character and fitness decisions, practice, a portable bar exam score eliminates the educational prerequisites (e.g., graduation from an stress of having to select a particular jurisdiction in ABA-accredited law school), pass/fail cut scores, which to sit for the bar exam. Portability of the UBE ADA accommodation decisions, and the duration of score is particularly helpful because the ability to UBE score portability. be admitted on motion in most jurisdictions is often unavailable to recent law school graduates who do A La w Sc h o o l Pe r s p e c t i v e o n t h e not meet the “years of practice” requirement—gen- Be n e f i ts o f t h e UBE erally five of the past seven years for those jurisdic- In my role as dean of a law school, one of my prin- tions that offer motion admission. ciple concerns is the successful and speedy licensure of our graduates. Several vari- Many practitioners find ables, however, can make this themselves engaging in cross- Ma n y p r a c t i t i o n e r s f i n d t h e m - process complicated and inef- border or multijurisdictional s e lv e s e n g a g i n g in c r o ss -b o r d e r ficient—variables that could be law practice, making possible o r multijurisdictional l a w p r a c - significantly reduced or elimi- nationwide adoption of the t i c e , m a k i n g p o ss i bl e n a t i o n w i d e nated by widespread adoption UBE attractive to current and a d o p t i o n o f t h e UBE a tt r a c t i v e of the UBE. Based on conversa- future . Widespread t o c u r r e n t a n d f utu r e l a w y e r s . tions with two members of our UBE adoption could also result administration who provide in cost efficiencies in fees for the vast majority of bar counseling and career advice clients with multijurisdictional cases. Moreover, the to our graduating students—Jessica Heywood, UBE can enhance both the professional and personal Director of Career and Professional Development, mobility of lawyers. and Georgia Niedzielko, Assistant Dean of the Office of Academic Affairs—I have provided below Co n c e r n s Ra i s e d a b o ut t h e Un i f o r m three examples of how the UBE can be beneficial to Ba r Ex a m i n a t i o n recent law school graduates. These examples apply not only to students graduating from our law school What about state-specific testing? Under the UBE test- but to a certain extent to graduates of law schools ing structure, any individual jurisdiction can con- throughout the country. tinue to test examinees on state-specific law and/or

rules of practice and procedure either by attaching Simplifying Bar Selection and Maximizing an additional test to its bar examination or by add- Employability ing a continuing legal education or “bridge-the-gap” Because bar application deadlines in many juris- program requirement to the licensing process. dictions are set months in advance of the July bar What about common decisions currently made by exam administration, most graduating students are each jurisdiction? Other aspects of bar admissions required to select a jurisdiction in which to sit for that are of importance to individual jurisdictions the bar exam long before they have received an will remain within the authority of each jurisdic- offer of employment. Accordingly, law school bar

The Uniform Bar Examination: A Benefit to Law School Graduates 9 counselors and career advisors spend countless hours will take the bar exam in another jurisdiction and in the winter and spring helping graduating students use the admission on motion rule for licensure in the decide which bar is appropriate in cases where a District of Columbia. Accordingly, very few of our graduate does not yet know what type of employer graduates actually sit for the bar exam in the District he or she will be working for or the state in which of Columbia, and many simply use DC’s admission he or she will be working. (For example, the place on motion procedure. Graduating students inter- of licensing is not as important for an attorney to be ested in maximizing their employment opportuni- eligible to work for the federal government as it is for ties in both the short and long terms and wanting an attorney to be eligible to work for a private firm, to avoid taking a second bar examination when for which the place of licensing allows the attorney to they ultimately return to their home state or move practice in that firm’s market.) Employment statistics elsewhere initially think these goals are achievable collected by NALP (the Association for Legal Career in this way. Professionals) indicate that in 2009, almost 40% of While this may sound like a reasonable solu- graduating law school students nationwide did not tion, it may not result in the greatest maximiza- receive offers of employment until after gradua- tion of short-term employment opportunities in the tion.4 Thus, many graduating students are in essence greater Washington DC area. Many Maryland and/ forced into making a decision about where to take or Virginia firms based in DC require lawyers to also the bar exam because of an application deadline as hold licenses from those jurisdictions. Therefore, opposed to being able to make this decision based on if the graduate obtained his or her first license in a actual post-graduation employment. state other than Maryland or Virginia, the graduate Many students at Catholic University anticipate has limited his or her employment options to firms practicing in the Washington DC area immediately that only require attorneys to have a DC license or to after graduation with the intent of moving to their the federal government, which accepts bar licensure home state or another state after acquiring a few from any jurisdiction. In reality, the graduate will years of experience in DC. Because of the “years still need to sit for the bar examination in Maryland of practice” requirement attached to the admission and/or Virginia to maximize employment options on motion rules of most jurisdictions, we therefore with Maryland- and Virginia-based firms and state advise these students that it will be necessary for and local governments, including public defenders’ them to take another bar exam to be admitted in and ’ offices. Widespread adoption of each jurisdiction in which they wish to practice in the the UBE would resolve these bar selection problems early years of their careers. by allowing recent graduates to sit for the bar exam in any jurisdiction and then simply transfer the UBE However, because the admission on motion rule score to the new jurisdiction of their choice. of the District of Columbia allows lawyers who have obtained an MBE score of at least 133 and an MPRE Making the Most of Bar Counseling and Bar score of at least 75 to be admitted regardless of years Preparation Programs of practice, most law school graduates planning to Virtually all law schools offer bar preparation pro- practice in the District of Columbia upon graduation grams for graduating students in order to enhance

10 The Bar Examiner, August 2010 student readiness for the bar preparation regimen On the other hand, the student who seeks admis- that follows graduation—essentially giving students sion in the state of Washington will find that the a “head start” opportunity. At law schools where a Washington exam is dramatically different from majority of the graduates sit for the bar exam in one the exam taken by almost all other graduates. jurisdiction, it is relatively straightforward for the Washington does not use the MBE, and its exam law school to design a bar preparation program for consists entirely of state-specific essay questions. its students. Accordingly, students who sit for the bar exam in Washington do not benefit from the MBE portion For law schools where a significant number of of our bar preparation programming; they do, how- recent graduates sit for the bar exam in several dif- ever, benefit from the rigorous essay preparation ferent jurisdictions, the law schools (and therefore that we offer. the students) have to become familiar with the test specifics and subject coverage of many different Nationwide adoption of the UBE would elimi- bar exams. My law school, Catholic University, is nate the challenge for law schools of developing one of these schools. The good news is that because different bar preparation courses for students who Catholic has a critical mass of students sitting for intend to practice in different jurisdictions. the exam in Maryland, Virginia, and New York, we have developed a strong base of bar preparation Enhancing Lawyer Mobility

programming and information that we can readily As I mentioned before, one of the attractions of the provide to students for those exams. While we have UBE is that it enhances the graduating student’s a number of graduating students who sit for the bar professional and personal mobility. I see examples exam in other states, our bar preparation program- of this need for mobility with every graduating class. ming is sufficient to assist all of our students with The pressure of having to take two bar examinations initial bar preparation readiness. However, students to accommodate such needs so early in the gradu- who take the bar exam in a jurisdiction other than ate’s career is stressful personally and economically. our three primary jurisdictions (aside from DC itself) still need to do research to understand the specifics For example, let’s assume that a graduating stu- of that particular jurisdiction’s exam. dent’s spouse is about to be stationed in California (a state that does not provide for admission on motion For example, the student who seeks admission or accept an MBE score received in another jurisdic- in Colorado will find that Colorado uses the MBE, tion) but within three years expects to move back MEE, and MPT—in other words, the same exam home to New Hampshire (a state that requires a law- components that Catholic covers in detail in its bar yer to have practiced for five of the past seven years preparation program. Thus, the student can benefit to be admitted on motion). The individual require- from our general programming; however, he or she ments of each bar exam create serious barriers. In will still need to determine what subjects are tested this example, the student will need to prepare for in the Colorado-specific essay portion, including the California examination and then in short order subjects that may be different from those covered in prepare for another bar exam in New Hampshire, the MEE. incurring significant expense and needing to wait

The Uniform Bar Examination: A Benefit to Law School Graduates 11 for the second bar exam’s results before being able to 2. See American Bar Association Section of Legal Education and Admissions to the Bar, Standards Review Committee obtain employment in New Hampshire. Student Learning Outcomes Subcommittee, May 5, 2010, Draft, Chapter 3: Program of Legal Education, available In summary, widespread adoption of the UBE at http://www.abanet.org/legaled/committees/comstan- dards.html (find “Drafts for Consideration at Standards would allow lawyers to move from one jurisdic- Review Committee Meetings”; then find “Meeting Date: July 24–25, 2010”; then find “Standards 301–307: Student tion to another as their careers and personal needs Learning Outcomes”). require. It would also dramatically decrease the 3. The primary source of information for these presentations is “Essays on a Uniform Bar Examination” from the February amount of time and thought examinees spend trying 2009 issue of the Bar Examiner. The essays in this collection, to decide which bar to take, while enhancing the abil- written by a range of authors, including bar examiners and administrators, judges, and law school deans and faculty ity of the examinee to focus on what all bar examina- members, explore the benefits of and concerns raised by the UBE. tions ultimately seek to assess—basic knowledge of 4. Association for Legal Career Professionals, Class of 2009 law, professional ethics, and skills necessary for the National Summary Report, available at http://www.nalp .org/uploads/NatlSummaryChartClassof09.pdf. effective practice of law.

Ad o p t i o n o f t h e Un i f o r m Ba r Ex a m i n a t i o n : Pr o g r e ss Re p o r t At the time of publication of this article, the state bar examination and admission authorities of Missouri and North Dakota have adopted the UBE and are scheduled to launch the UBE for the February 2011 bar examination administration. Twenty-two juris- dictions use all three of the UBE test components (MBE, MEE, and MPT) and are likely candidates for adoption of the UBE. Approximately 10 additional Ve r y l Victoria Mi l e s is dean of The Catholic University of states are said to be seriously considering adoption America Columbus School of Law, where she has taught since 1998. From 1997 to 1999 she was the law school’s associate dean of the UBE over the next two years. for academic affairs. Miles served for two years (2001–2003) as deputy director of the Association of American Law Schools. She While it is my hope that all jurisdictions will has published articles on consumer bankruptcy and commercial law and on matters relating to diversity in higher education and ultimately adopt the UBE, it is clear that the process in the legal profession. Miles received her B.A. from Wells College will take time. Jurisdiction concerns about providing and her J.D. from The Catholic University of America Columbus School of Law. the fullest licensing protections for their citizenry need to be addressed. As more members of the legal community become aware of the UBE, however, its novelty will disappear and its appeal as a reasonable option for law practice licensure will increase.

No t e s 1. William M. Sullivan, Anne Colby, Judith Welch Wegner, Lloyd Bond & Lee S. Shulman, Ed u c a t i n g La w y e r s : Pr e p a r a t i o n f o r t h e Pr o f e ss i o n o f La w (Carnegie Foundation for the Advancement of Teaching/Jossey-Bass 2007).

12 The Bar Examiner, August 2010